JUDGMENT S.K. Singh, J.
1. By means of present writ petition the petitioner has challenged the order dated December 15, 2001 (annexure 1 to the writ petition) passed by respondent No. 2 and the order dated February 1, 2002 (annexure 5 to the writ petition) passed by respondent No. 1. By the order dated December 15, 2001, the respondent No. 2 has advised the disciplinary authority to consider the matter de novo for fresh enquiry and pursuant thereof by the order dated February 1, 2002, the respondent No. 1 has directed for re-enquiry in the case.
2. Heard Sri S.N. Dubey, learned counsel for the petitioner and Sri Satish Chaturvedi, learned advocate who appears for respondents. Affidavits exchanged between the parties have been perused.
3. Brief facts of the case for the purposes of decision can be summarised. The petitioner was initially appointed on the post of Accountant/Cash Clerk in the Bank of Baroda (hereinafter referred to as the bank). At the time when the petitioner was posted as identified Head Cashier at Kandharpur Branch in district, Bareilly, he was served with a charge-sheet on January 10/15, 2000 and the enquiry proceeded. It is claimed that the enquiry was concluded on December 23, 2000 in which the charges against the petitioner were found not to be proved. The Inquiry Officer's report came to the respondent No. 1, but he instead of taking any decision in the matter, he appears to have written a letter to the respondent No. 2 (Chief Manager, Vigilance), Central Office of the Bank stating that the petitioner be exonerated as none of the allegations or the charges have been proved. However, the respondent No. 2 by order/letter dated December 15, 2001 (annexure I to the writ petition) advised the respondent No. 2 for transferring the petitioner to another district/region and also for proceeding in the matter de novo. It is thereafter, the order by respondent No. 1 dated February 1, 2002 (Annexure 6 to the writ petition) came to be passed by which, he directed for re-enquiry in the case. Thus the petitioner being aggrieved by the aforesaid two orders i.e. December 15, 2001 and February 1, 2002 has come up to this Court.
4. Learned counsel for the petitioner submits that the impugned exercise by respondent No. 1 and 2 is totally illegal, without jurisdiction and is unwarranted in the facts of the present case. It is argued that on conclusion of the enquiry, in view of the enquiry officer's report, charges against the petitioner were found not to be proved and thus it was for the disciplinary authority to take decision in accordance with law and thus reference by him to the respondent No. 2 without any disagreement in respect to the conclusion of the enquiry officer was totally uncalled for and therefore, passing of the order dated February 1, 2002 directing for re-enquiry being at the mandate of respondent No. 1 cannot be sustained. Learned counsel submits that the disciplinary authority/respondent No. 1 has not applied his mind while directing for re-enquiry and therefore, the exercise by the impugned order is clearly vitiated. It is then argued that taking any view of the matter, respondent No. 1 cannot order for re- enquiry without assigning cogent reason to disagree with the findings and conclusion arrived at by the enquiry officer and that disagreement too can be conveyed only after affording adequate opportunity/show cause to the petitioner. It is submitted as that neither the petitioner was given copy of enquiry officer's report nor any show cause notice and opportunity at any stage before passing of the impugned order for re-enquiry, the impugned action is liable to be quashed by this Court. Learned counsel in support of his submission that the re- enquiry cannot be ordered without giving opportunity to the petitioner of submitting his representation and without assigning cogent reasons, for his disagreement with the finding of the enquiry officer, has referred to the Circulars issued by the bank itself dated September 24, 1991, September 3, 1999 and December 30, 1993 (Annexures 14 to 16) respectively to the writ petition. It is on these premises, submission is that the impugned orders of the respondents No. 1 and 2 be interfered.
5. Sri Satish Chaturvedi, learned advocate who appears for respondents in response to the aforesaid submissions argued that the disciplinary authority was fully justified in making second stage reference to respondent No. 2 and further that the respondent No. 1 was fully justified in directing de novo/fresh enquiry which is clearly provided under the Programme on Discipline Management, disciplinary action under which the procedure is provided, as referred in para-7 of the counter-affidavit. It is argued that Sub-clause (3) of para-3 as referred in para-7 of the counter-affidavit clearly authorises the disciplinary authority that if he is of the opinion that the presenting officer has not presented the bank's case properly, he may order fresh enquiry with another presenting officer. It is submitted that as it was a vigilance case, the disciplinary authority has rightly made second stage reference to the Chief Commissioner, Vigilance of the bank and thereafter, re-inquiry has been directed.
6. In view of the aforesaid submission as has come from both sides, the matter has been examined.
7. On the submission as has come on record, on the grounds which have been taken before this Court, the question which needs attention is that how and in what circumstances de novo/fresh enquiry can be directed and whether on the facts of the present case, for fresh enquiry can be said to be justified. The question appears to be well settled by catena of decisions of the Apex Court, placing reliance over which, this Court in a recent decision given in the case of Shitla Prasad Singh v. Commissioner Varanasi Division 1999 (83) FLR 329, has clearly held where the disciplinary authority differs from the report of the enquiry officer and proposes to reverse the finding recorded by the enquiry officer against the delinquent employee, he must record his tentative reason in the show cause to enable the employee to represent his case." The Apex Court in the case of Ram Kishan v. Union of India AIR 1996 SC 255 : 1995 (6) SCC 157 : 1996-I-LLJ-982 has made the following observations at p. 985 of LLJ:
"10 ...... The purpose of the show cause notice, in case of disagreement with the findings of the enquiry officer, is to enable the delinquent to show that the disciplinary authority is persuaded not to disagree with the conclusions reached by the enquiry officer for the reasons given in the enquiry report or he may offer additional reasons in support of the finding by the inquiry officer. In that situation, unless the disciplinary authority gives specific reasons in the show cause on the basis of which the findings of the inquiry officer in that behalf is based, it would be difficult for the delinquent to satisfactorily give reasons to persuade the disciplinary authority to agree with the conclusions reached by the inquiry officer. In the absence of any ground or reason in the show cause notice it amounts to an empty formality which would cause grave prejudice to the delinquent officer and would result in injustice to him. The mere fact that in the final order some reasons have been given to disagree with the conclusions reached by the disciplinary authority cannot cure the defect......."
8. In another decision given by the Apex Court in the case of Punjab National Bank v. Kunj Behari Mishra AIR 1998 SC 2713 : 1998 (7) SCC 84 : 1998-II-LLJ-809, has again made the following observations at p. 818 of LLJ:
"19. ...... As a result thereof whenever the disciplinary authority disagrees with the inquiry authority or any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and given to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer....."
9. In view of the aforesaid, the question appears to be well settled that the disciplinary authority while disagreeing with the report of inquiry officer has to record cogent reason and that too can be done after giving adequate opportunity to the petitioner of making his representation. Besides the aforesaid view being settled by the decisions referred above, the own circular issued by the bank referred above clearly mandates the disciplinary authority for assigning cogent reasons in recording disagreement and that too after giving an opportunity of making representation on the substituted finding from the charged employee. The relevant provision in this respect as provided in the Circular dated September 3, 1999 will be useful to be quoted hereunder;
"whenever Disciplinary authority is not accepting the findings of the Inquiring Authority, it is mandatory as per law to get the findings rewritten by him as Disciplinary authority and to submit a copy thereof to the delinquent employee (preferably holding a hearing explaining as to why he disagrees with the findings of the Inquiring Authority) and to get representation on the substituted findings from the charged employee."
10. The same thing was earlier provided in earlier Circular dated December 30, 1993. The provision as contained in the circular dated December 30, 1993 will also be useful to be quoted herein below:
"Further, the undersigned has also stressed that whenever Disciplinary authority is not accepting the findings of the inquiring authority, it is mandatory as per law to get the findings re-written by him as the disciplinary authority to submit a copy thereof to the delinquent employee preferably holding a hearing explaining as to why he disagrees with the findings of the Inquiry authority and to get representations on substituted findings from the charged employee."
11. In view of the aforesaid, the submission of learned counsel for the petitioner that the direction for re-enquiry by the order dated February 1, 2002 (annexure 6 to the writ petition) being without assigning any cogent reason to disagree with the finding of the inquiry officer and being without any showcause opportunity to the petitioner, finds favour of the Court. Besides, the acceptance of the submission of learned counsel referred above, on the legal aspect, on the facts also, it appears to be improper exercise on the part of respondents No. 1/2. The contention by Sri Chaturvedi that the respondent No. 1 was justified in making second stage reference, is based on the powers in this respect as is provided in this respect as provided in Circular dated September 24, 1991 (Annexure 14 to the writ petition) also cannot be accepted. If we examine the aforesaid circular referred above by Sri Chaturvedi, the only conclusion can be arrived at that the second stage reference to the central vigilance department can only be made after the disagreement by the disciplinary authority regarding the finding of the Inquiry officer, which as held above, can only be arrived at after an opportunity to the charged employee of making submission/ representation. The provision in this respect as provided in the circular dated September 24, 1991 (Annexure 14) is to be quoted hereinbelow:
"The Disciplinary authorities should make their second stage reference to the Central Vigilance Department only after receiving submission/ representation from the charge-sheeted employee. If however, no submission is received within the stipulated period; the second stage reference can be made after expiry of the said period."
12. This is also further corroborated from the instructions so given in more clear term in the circular dated December 30, 1993 (Annexure 16). The aforesaid instructions is to be referred here for convenient understanding of the matter.
"From the above, it is amply clear that you are required to comply with the above guidelines scrupulously before making second stage reference to the undersigned and before imposition of punishment on the delinquent employee while dealing with the case at your level."
13. In view of the aforesaid conclusion to which this Court arrives, on examination of the instructions so even issued by the bank itself and on examination of the facts, is that the second stage reference is only required when the disciplinary authority proposes to disagree with the findings of the inquiry officer and that too after assigning cogent reasons and after giving opportunity to the petitioner. The purposes of reference to the Chief Commissioner, Vigilance appears to be in the case of Vigilance enquiry, the disciplinary authority may disagree with the findings of the inquiry officer after a concurrence of the Chief Commissioner, Vigilance but it appears that in no case for acceptance of the inquiry officer's report any concurrence of the Chief Commissioner, Vigilance can be said to be required. Neither from the counter-affidavit nor from the arguments anything has been displayed before the Court that the disciplinary authority while taking decision in the light of the inquiry officer's report has to get a direction qua concurrence while accepting the finding and the conclusion of the inquiry officer's report. So far as the case in hand is concerned, there appears to be no dispute that the inquiry officer has found that the charges against the petitioner has not been proved. Significantly, the disciplinary authority admittedly, agreed to the finding of the inquiry officer and thus, he wrote a letter on November 3, 2001 to the respondent No. 2 clearly proposing that the petitioner be exonerated as none of the allegations or charges have been proved. The relevant portion of the letter dated November 2, 2001 written by the respondent No. 1 as is contained in the order of respondent No. 2 dated December 15, 2001 can be quoted hereunder:
"We request reference to second stage reference made vide your letter No. ROB: 01:BLI:AS:434 dated November 3, 2001 proposing that Mr. Anupam Saxena be exonerated as none of the allegations or charges have been proved..."
14. In the light of the aforesaid on acceptance of the findings of the inquiry officer as accepted by the disciplinary authority, this Court finds difficulty in accepting the contention of the respondents that there was any stage for second reference and in any view of the matter, the order of respondent No. 1 dated February 1, 2002 (Annexure 6) exist on record by which re-enquiry has been directed appears to have no connection on materials so. The order of respondent No. 1 dated February 1, 2002 on its perusal appears to be an independent exercise as it is not mentioned that the order is on account of disagreement as informed by the respondent No. 2. But at the same time, respondent No. 1/disciplinary authority has mentioned one line in the impugned order that he has not concurred with the findings of the inquiry officer. This reasoning in the impugned order appears to be self contradictory, inasmuch as at one stage, the disciplinary authority himself by letter dated November 3, 2001 written to the respondent No. 2 has clearly mentioned that none of the allegations/charges against the petitioner has been proved and thus the petitioner was proposed to be exonerated and at the same time, the impugned order dated February 1, 2002 states that he has not concurred with the findings of the inquiry officer and thus re-enquiry is being directed. In the aforesaid premises, it is held that the entire exercise at both ends i.e. respondent No. 1 and respondent No. 2 is neither justified nor proper nor is warranted in the facts of the present case. Once the disciplinary authority has agreed with the findings of the inquiry officer and he has proposed that the petitioner be exonerated, the records before this Court, do not demonstrate any lawful justification for fresh enquiry.
15. For all the reasons recorded above, the petitioner is entitled to get relief from this Court.
16. The writ petition accordingly succeeds and is allowed. The impugned orders dated February 1, 2002 and December 15, 2001 (Annexures 5 and 1 to the writ petition) are hereby quashed.